Editor’s Note: ASMP’s Tom Kennedy, and ASMP copyright counsel, Mike Klipper, are on the frontline in the advocacy efforts to get the CASE Act bill passed into law. The following op-ed written by Kennedy appeared in The Hill today.
[by Thomas R. Kennedy]
Last week, our nation celebrated National Small Business Week — a much-deserved nod to the more than 30 million small businesses that employ nearly 59 million workers. During the week, we honored the indomitable spirit that motivates millions of American entrepreneurs to accept the risks and challenges posed by starting new businesses in their local communities. But for many small business people — including photographers like my organization’s members, graphic artists, illustrators, authors and songwriters — holding onto to that spirt of entrepreneurship has proven increasingly difficult as their creative works are plundered by those who use them without permission and compensation — an increasingly easy task in our digital world.
Today, creative artists all too often find themselves at the mercy of a copyright system that gives them legal rights to fight back against copyright infringers but no viable forum to seek vindication against piratical actors. Quite simply, while we may have rights to protect our creative efforts under the copyright law, we are routinely unable to enforce those rights because of the costs and complexities of bringing a lawsuit in federal court — the only place to bring a copyright infringement suit today.
Think of how depressing and disconcerting it is to be unable to seek vindication against an infringer irrespective of how egregious and widespread the violation. Think about how frustrating it is for a small business person to struggle to pay a tuition or medical bill because an infringer refuses to pay a customary license fee. How does a visual artist, author or songwriter maintain that entrepreneurial spirit in the face of this legal inequity? What can be done to help correct this unfair and debilitating legal situation?
Those were and are the types of questions on the minds of thousands of individual creators as our country tipped its hat to small businesses that dot every community nationwide. Fortunately, an answer to this perplexing legal situation is on the horizon. On May 1, Reps. Hakeem Jeffries (D-N.Y.) and Doug Collins (R-Ga.), as well as a broad, bipartisan group of senators — John Kennedy (R-La.), Thom Tillis (R-N.C.), Dick Durbin (D-Ill.), and Mazie Hirono (D-Hawaii) — introduced legislation in Congress to finally provide individual creators and small businesses with an affordable, accessible forum to bring legal action against copyright infringers. Known as the Copyright Alternative in Small-Claims Enforcement Act of 2019 (CASE Act), S. 1273 and H.R. 2426, the bill would create a tribunal in the United States Copyright Office to handle small copyright claims, tracking closely to recommendations made by the Copyright Office in its comprehensive 2013 Study on the subject. The CASE Act is a fair, balanced bill that, in part, would:
- Create a Copyright Claim Board (CCB) comprised of three judges with experience in copyright law and alternative dispute resolution;
- Establish a purely voluntary system — an alleged copyright infringer could simply opt out of the CCB process;
- Provide that neither party has to hire an attorney;
- Cap damages at $30,000 per proceeding (and the CBB cannot enjoin infringing activity);
- Require parties to pay their own attorney fees, if any;
- Not require in-person appearances before the CCB, as proceedings will generally be conducted electronically;
- Discourage bad faith claims, counterclaims and defenses by: (1) imposing attorney fees on bad actors, and: (2) barring “repeat offenders” from filing claims for a set time period.
As I see it, the CASE Act is our best shot at ensuring that visual artists, songwriters, authors and small businesses will be full participants, for the first time, in the copyright marketplace. How exciting for them to finally have hope that they will emerge from the legal darkness and have a seat at the table! On their behalf, I call on all members of the 116th Congress to recognize the plight of long-suffering creators and strike a blow to inject more fairness into the copyright law by supporting the CASE Act.
Thomas Kennedy is executive director of the American Society of Media Photographers.
Featured image: Library of Congress / Getty Images